Law Relating to the Right of Private Defence

    Edited by: Vaani Garg

    The Indian Penal Code states the laws relating to the right of Self Defense/Private Defense under the Section 96-106. These provisions allow a man to use certain force against the wrong-doer in order to protect his own body or his property or another person’s body and their property. Private Defense is mainly classified into two types:

    1. Right of private defense of body;
    2. Right of private defense of property

    Section 96- Private Defense

    This section states that no such act is an offence which is done to exercise of the right of private defense.

    The accused need not prove the existence of the right of private defense beyond reasonable doubt. There are certain principles laid down for the right of private defense, they are as follows:

    (a) There is no right of private defense against an act which is not in itself an offence under the code;

    (b) The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence;

    (c) It is defensive and not a retaliatory or a retributive right. Therefore, in no case more harm than what is necessary to inflict in defense is permissible;

    (d) The right extends to killing of the actual or potential attacker when there is a reasonable and eminent apprehension of the crimes enumerated in the 6th clause of Section 100.

    Section 97- Right of Private Defense of body and property

    This Section states that every person has a right to defend:

    1. His own body, and the body of another person, against any offence affecting the human body;
    2. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.

    The first part deals with the defense of body, it provides that this right is to be used only when it is necessary.

    The second part of the section deals with the defense of property which imposes restriction on the person to defend his property against any attack that falls under the definition of theft, robbery, mischief for criminal trespass.

    Section 98- Right of Private Defense against the act of a person of unsound mind etc.

    This section states, when an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defense against that act which he would have if the act were that offence.

    This section lays down a person still has a right to self defense even the person hasn’t reached the mature age, a person who lacks understanding, a person with unsound mind and an intoxicated person.

    Section 99- Acts against which there is no right to Private Defense

    This section mainly lays down the limitations of private defense. The first and second clause of the section mainly describes that there is no right to private defense when it is attempted or done by a public servant and the third clause of the section describes that there is no right to self defense when there is time to seek help from the public authorities.

    Section 100- When the Right of Private Defense of the body extends to causing death

    This section states that private defense of body can be exercised in the following conditions:

    1. That such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
    2. That such an assault, as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
    3. That such an assault with the intention of committing rape;
    4. That such an assault with the intention of gratifying unnatural lust;
    5. That such an assault with the intention of kidnapping or abducting;
    6. That such an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

    This Section mainly lays down the conditions under which a person can use private defence of body. The reasonable apprehension of the accused that grievous hurt will be caused to him must be judged from the subjective point of view of the accused rather than viewing the minor details.

    Section 101- When such right extends to causing any harm other than death

    This section states that if an offence has not been done under any of the descriptions enumerated in the last preceding section, the right of private defense of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

    Section 102- Commencement and continuance of the Right of Private Defense of the body

    This section states that the right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues.

    The Right to Private Defense commences as soon as reasonable apprehension of danger to the body arises and lasts as long as such reasonable apprehension continues.

    Section 103- When the Right of Private Defense of property extends to causing death

    This section states the right of private defense of property can be exercised if the offence is:

    1. Robbery;
    2. House-breaking by night;
    3. Mischief by fire committed on any building, tent or vessel, which building, tent of vessel is used as a human dwelling, or as a place for the custody of property;
    4. Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

    This section mainly lists down the cases where a person can exercise the right to private defense of property. These can be related to robbery, house breaking, mischief by fire, theft and house trespass. The underlying principle is that there are certain basic restrictions laid down which have to be adhered to. The harm inflicted must not be more than what is legitimately necessary.

    Section 104- When such right extends to causing any harm other than death

    This section states that if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the Right of Private Defense, be theft, mischief, or criminal trespass, is not of any of the descriptions enumerated in the last preceding section, then that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.

    Section 105- Commencement and continuance of the right of private defense of property

    This section states that, the Right of Private Defense of property commences when a reasonable apprehension of danger to the property commences.

    The Right of Private Defense of Property against theft continues till the offender has effected his retreat with the property/ the assistance of the public authorities is obtained/the property has been recovered.

    The Right of Private Defense of Property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint of as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

    The Right of Private Defense of Property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

    The Right of Private Defense of Property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

    Section 106- Right of private defense against deadly assault when there is risk of harm to innocent person

    This Section states that, if in the exercise of the right of private defense against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person his right or private defense extends to the running of that risk.

    Case laws

    In the case of State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, the court observed that “every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defense commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities.”

    In the case of Mohinder Pal Jolly v. State of Punjab AIR 1979 SC 577, there was a dispute between the appellant, the factory owner and the factory workers, on the day of the occurrence when the factory workers were protesting outside the factory, the appellant had come out and fired a shot causing the death of one of the worker. The court had found the appellant guilty under section 304 of IPC, stating that there was no intention to murder the factory worker and that there was no apprehension of death or hurt.

    In the case of Yogendra Moraji v. State of Gujarat AIR 1980 SC 660, the court observed the extent and limitation of the Right of Private Defense. One of the aspects emphasized by the court was that there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant. This aspect has created quite a confusion as it indirectly suggests that one should first try to see the possibility of a retreat than to defend by using force, which is contrary to the principle that the law does not encourage cowardice on the part of one who is attacked.